Statement by Dr. Hans Koechler, international observer of the International
Progress Organization, nominated by the Secretary-General of the United Nations,
at the Lockerbie trial in the Netherlands (2000-2002), on the agreement between
the United States, the United Kingdom and the Libyan Jamahiriya on the remaining
issues relating to the fulfilment of all Security Council resolutions resulting
from the bombing of Pan Am 103 over Lockerbie

Reykjavik, 23 August 2003

1.The agreement
between the United States, the United Kingdom and the Libyan Jamahiriya about
the compensation payment of USD 2.7 billion to the relatives of the Lockerbie
bombing, Libya’s acceptance of responsibility for the bombing and her commitment
to cooperate in any further investigations of the bombing of Pan Am 103, as well
as Libya’s condemnation of terrorism and her pledge to support the efforts of
the United Nations in the battle against terrorism, will not be conducive to the
search for truth in the Lockerbie case as long as those measures avoid
addressing the crucial question of personal criminal responsibility of
individuals other than the convicted Libyan national.

2.The letter addressed by the Chargé d’affaires a.i. of Libya to the
President of the UN Security Council, confirming the resolution of the remaining
issues, does not contribute to clarifying the issue of individual criminal
responsibility for the bombing. The wording regarding responsibility is vague
and ambiguous: “… out of respect for international law and pursuant to the
Security Council resolutions, Libya as a sovereign state has facilitated the
bringing to justice of the two suspects charged with the bombing of Pan Am 103,
and accepts responsibility for the actions of its officials …”

3.The above statement, one would assume, can only be interpreted in the
sense of Libya accepting the guilt of the Libyan national who was sentenced in
the Lockerbie trial. Libya, however, through statements of her officials (among
them the Foreign Secretary) made after the delivery of the above
mentioned letter, has maintained the innocence of Mr. Al-Megrahi. In view of the
fact that one of the "two suspects" referred to in the letter has been acquitted
and the state accepting responsibility for the "actions of its officials"
maintains the innocence of the second suspect (who has been declared guilty by
the court), the concept of “state responsibility,” apparently used in the above
mentioned letter, becomes inapplicable, indeed void of any meaning. However, the
fact that a compensation payment of USD 2.7 billion has been deposited with the
Bank for International Settlements in Basel stands in stark contrast to this
vague and ambiguous admission of state responsibility – unless there are other
facts eventually establishing the guilt of officials other than the "two
suspects" mentioned in the letter to the President of the Security Council.

4.It is to be recalled that neither in the trial nor the appeal proceedings
at the Scottish Court in the Netherlands was any material evidence presented
linking the sentenced Libyan national to the crime. The verdict was entirely
based on inferences and circumstantial evidence. Many of the statements of the
Prosecution’s witnesses were contradictory – or even proven wrong in the course
of the trial. The co-accused Libyan national, Mr. Fhimah, was acquitted by the
Court – not because of lack of evidence (“not proven”), but because it was
proven, in the opinion of the Court, that he had nothing to do with the crime
(although the entire strategy of the prosecution was based on the assumption
that the two accused had prepared the crime together).

5.The entire trial and appeal proceedings were characterized by a lack of
adequate defense for the convicted Libyan national. The defense team in many
instances had chosen not to use the evidence available and had thus created the
impression of pursuing an agenda different from that of providing adequate legal
defense in this particular case. All the details are contained in the
undersigned’s observer reports of 3 February 2001 and 26 March 2002.

6.Furthermore, it is obvious that an intelligence officer alone – from
whichever country – was never in a position of planning, financing and carrying
out a terrorist act such as the bombing of a large jetliner in midair. It would
have been the duty of the Scottish investigating authorities to continue their
investigations so as to find out which persons from which country (or countries)
actually ordered, financed and carried out the terrorist act.

7.In the course of the Lockerbie trial in the Netherlands, a large amount
of evidence concerning the crime was either not available or was chosen not to
be used either by the Prosecution or Defense (for reasons that were never
disclosed). Additional evidence has surfaced during the appeal proceedings in
the Netherlands in 2001/2002 which was never made use of. Further revelations
were made after the appeal decision of March 2002, namely concerning the alleged
responsibility of the Abu Nidal terrorist group. It is the duty of the Scottish
judicial authorities to follow up on this new information. No one will believe
that a lone Libyan intelligence officer will have been able to carry out a crime
that required sophisticated logistics and large financial resources.

8.It is to be noted that in the course of the trial and appeal proceedings
at the Scottish Court in the Netherlands the intelligence services of all three
countries involved in the Lockerbie dispute – the United States, the United
Kingdom and Libya – had hampered, to varying degrees, the Court’s ability to
obtain necessary evidence. A Libyan-American double agent was presented as key
witness of the prosecution (who was proven as totally lacking credibility);
important information was either censored or completely withheld from the court
because of national security considerations; etc.

9.It is also to be noted that Western intelligence services, for whichever
reason, must have had advance knowledge of the bombing plot because specific
warnings were circulated in December 1988 – which saved the lives of those
privileged to share this information.

10.In view of the
arguments presented in the Court proceedings, it seems unlikely that the
Lockerbie bomb was inserted at Luqa International Airport in Malta. On the basis
of the circumstantial evidence available so far, insertion in Frankfurt or
Heathrow is much more likely. It is also to be investigated why the information
on a break-in at the luggage area where the bags for Pan Am 103 were stored at
Heathrow in the night before the Lockerbie bombing had never reached the
investigating authorities and why the Scottish Police had invited a key witness
of the Prosecution, a Maltese shop owner, for holiday trips to Scotland. It is
further to be investigated why much of the forensic evidence (concerning the
bomb’s timer, etc.) that was available at the time of the trial and appeal was
never made use of by the Defense.

11.Already
at the end of the Lockerbie trial in January 2001 and even more so during the
appeal proceedings in 2001/2002 the impression prevailed that strictly judicial
considerations (aimed at defining the criminal responsibility of the accused
individuals sine ira et studio) were put aside in favour of political
considerations.

12.It
is to be noted further that the defense teams for the two accused Libyan
nationals – and in particular for the sentenced Libyan national – were not
chosen by the two Libyan individuals, but by the Libyan government. Mr.
Al-Megrahi’s defense team was chosen by the Libyan authorities and paid for by
them, not by Mr. Al-Megrahi who has no funds. It did not act in defense of its
client in a professional manner, but may have acted according to the
instructions of the Libyan authorities whose interests are not necessarily
directed towards establishing the truth in this particular matter of criminal
justice, but towards reaching a political settlement with the United States and
the United Kingdom for the removal of the sanctions and for unhindered economic
cooperation.

13.In
view of the above considerations, Mr. Al-Megrahi may well be the scapegoat in a
comprehensive political arrangement, which allows the parties to the Lockerbie
dispute, including Libya, a face-saving way out of the impasse that prevailed
for more than a decade. Agreeing on putting the blame on a lone individual (as
irrational and improbable as this may be) absolves the parties to the Lockerbie
dispute from entering into delicate and highly embarrassing investigations of
the potential role of the intelligence services (including advance knowledge of
the crime and the question why they have done nothing to prevent it) of the
countries involved in the Lockerbie dispute. Because Mr. Al-Megrahi’s guilt has
not been proven beyond a reasonable doubt, further investigations would have to
be conducted by the Scottish judicial authorities so as to find out the truth.

14.It
is highly likely that the sentenced Libyan national is not guilty as charged and
that one or more countries other than Libya, through their intelligence services
and/or financial and logistical support for a terrorist group, may have
responsibility for the crime. In this regard, last year’s revelations by Atef
Abu Baker of the Fateh Revolutionary Council (made public after the
assassination of Abu Nidal in Baghdad) will have to be further investigated.
Since the events of September 11, 2001, there is absolutely no excuse for not
fully investigating the responsibility for the Lockerbie crime. Terrorism cannot
be fought through a political deal aimed at covering up the truth, but must be
eradicated through identification and punishment of all countries, individuals
and organizations that may have had responsibility for a specific terrorist act.

15.The
relatives of the victims of the bombing of Pan Am 103 deserve appropriate
compensation; but this must not come at the expense of the search for the truth
in this matter – and the actual compensation must not be tied to political
conditions and decisions (whether by the UN Security Council on the lifting of
UN sanctions or by the United States on the lifting of unilaterally imposed
sanctions, etc.). The relatives of the victims must not be made hostage to
political deals of their governments.

16.Above
all, the relatives of the victims deserve to know the full and uncensored truth
about the Lockerbie crime. This is their inalienable right as well as an
indispensable requirement of the international rule of law. For the
above-described reasons, the undersigned international observer renews his call
of 23 August 2002 for an independent public inquiry into the Lockerbie case.
Because the case is related to the foreign affairs of the UK (in particular in
the framework of Security Council resolutions), such an inquiry would have to be
mandated by the British Parliament (irrespective of whether the Scottish
judicial authorities will order a review of Mr. Al-Megrahi’s case, upon the
latter’s request, or not). There is no reason why an independent judicial
inquiry similar to the one conducted in connection with the death of Dr. Kelly
(in relation to the Iraq war of 2003) should not be undertaken in the case of
the Lockerbie bombing. The fact that the government of the United Kingdom
has repeatedly rejected an independent inquiry creates the impression that the
British administration is not interested in a transparent judicial, but in a
political settlement based on the specific constellation of interests between
the three parties to the dispute, the US, UK and Libya.

17.The
chapter of the Lockerbie investigation can only be closed when the full truth
will have been established and when the question will have been satisfactorily
answered why only a lone individual has been sentenced in a case that relates to
a terrorist crime the commission of which required a vast and sophisticated
operational network (most likely involving more than one country and/or
terrorist organization) and huge financial resources. An ambiguous declaration
of “state responsibility” such as the one deposited with the UN Security Council
does in no way answer the urgent and legitimate question as to personal criminal
responsibility of individuals other than Mr. Al-Megrahi (and eventually also
from other countries) for the Lockerbie crime. A political deal such as the one
concluded last week between the US, UK and Libya linking individual compensation
with the lifting of multilateral and subsequently unilateral sanctions does not
advance the cause of justice in the present case, but is part of the politics of
national interest of the countries involved in the present dispute. The
intelligence cooperation established between the three countries since September
11, 2001, in the area of counter-terrorism must not come at the expense of the
search for truth in the Lockerbie case. The doubts and misgivings about the
Lockerbie trial in the Netherlands will only disappear when a full investigation
of the crime by an independent commission will have been undertaken. Up to this
moment the undersigned will maintain his doubts about the Lockerbie verdict and
will consider the judgment concerning Mr. Al-Megrahi – on the basis of an
Indictment that was substantially modified in the course of the trial and
altered by the judges as part of the Verdict – as a miscarriage of justice.